Lismore City Council v Richmond Valley Council & Anor

The parties' submissions 7 Mr J E Robson, counsel for the applicant, relies upon the following submissions as to a reasonable contribution to be made by the second respondent towards road works. (a) The reasonable contribution to be made by the second respondent towards the road works is 20 per cent of the total cost of such work. The precise nature of the relationship between the increase in traffic attributable to the existing sugar mill and the growth in traffic related to the co-generation facility is unclear making it impossible to compare total traffic volumes as discrete amounts relating to each of the separate facilities. Further, there does not appear to be any significant historical increase in the generation of traffic to and from the sugar mill, and the reason for this is also unclear. (b) Mr M Findlater, an engineer who gave expert evidence for the proponent, did not visit the relevant portions of Broadwater Road. He could not, therefore, have properly assessed the impact of the increased traffic upon the road. (c) The traffic assessment in the environmental impact statement ("EIS") does not adequately address the impact of the co-generation plant upon the road network within Lismore Council's local government area. Particularly, such assessment insufficiently gauges the potential impact of the significant increase in truck movements attributable to the plant upon both road safety or the capacity of Broadwater Road. Mr M S Perkins, Lismore's development assessment engineer, states that the road's pavement depths and structural capacity to support the proposed traffic loads should have been part of such an assessment. (d) During the assessment period of the development application by Richmond Valley, Lismore provided draft conditions to Richmond Valley to address the impact of the proposal upon Broadwater Road. Such conditions were supported by that council's engineering section, but were not included in the conditions that were imposed. (e) Notwithstanding that Lismore plans to upgrade the road regardless of whether or not the proposal proceeds, the proposal will create hardship for Lismore. At the very least, the work must necessarily be undertaken earlier than otherwise planned. 8 Mr A M Pickles, counsel for the second respondent, relies upon the following submissions as to a reasonable contribution to be made by the second respondent. (a) Lismore's suggested condition is not reasonable because it would require the proponent to carry out the whole of the improvement works for Broadwater Road notwithstanding that the traffic generated by the co-generation plant will not constitute the entirety of the traffic using the road. Moreover, Broadwater Road is not the sole means of access to the development. (b) It is necessary to determine the extent to which additional volumes of traffic attributable to the plant will contribute to the extent of upgrading required. A reasonable contribution is determined by calculating the additional cost of constructing the road as a result of the development. That is, a reasonable contribution would first assume that Lismore would construct the road to a sufficient standard to meet the existing demand. (c) Mr R Gennaoui, a transport and traffic engineer who was called for Lismore, calculated that 18.1 per cent of total truck movements attributable to the mill will be attributable to the co-generation plant in 2004, with this share reducing to 17.8 per cent in 2010. It is submitted, that therefore, a 20 per cent contribution towards the total cost of upgrading a road that is currently of an insufficient standard is unreasonable. (d) It is necessarily the case that the traffic volumes on Broadwater Road have increased with the construction of Broadwater Bridge. The plant will merely add more traffic to this increased base volume. Further, the development consent for the Richmond River Bridge contemplated the carrying out of works by Lismore to the west of the former ferry stop, which had been replaced by the bridge. (e) According to Mr Findlater, only some of the items listed by Mr Perkins in his works cost assessment are increased by reason of the development. Mr Perkins' costing is further overestimated to the extent to which the first 1.7 km section includes works which the proponent accepts should be carried out on the western approach to the bridge pursuant to condition No. 79. (f) Contrary to his assertion, Mr Perkins has not calculated the contribution sought in accordance with Lismore's s 94 Contributions Plan: he adopted an equivalent standard axle ("ESA") of 3.4, rather than one of 1.9, employed by the plan. (g) In the absence of an upgrade of the road, the council has other options to ensure that the road is used safely. These include the imposition of a tonnage restriction on the road or a lower speed limit.

Conclusions 9 In determining a reasonable contribution towards the upgrading of the subject portions of Broadwater Road, it is necessary to estimate the proportion of traffic on the road during the period 2004- 2010 which will be attributable solely to the co-generation plant. This figure will correspond to the quantum of the cost of the works for which the proponent should be responsible. Despite Mr Robson's submission that the relationship between the increase in traffic attributable to the operation of the plant and the increase in traffic relating to the existing mill is unclear, the data before the Court nevertheless enables a calculation of a reasonable contribution. 10 Although Lismore claims a contribution of 20 per cent of the cost of the works, Mr Gennaoui found that a lower proportion of traffic associated with the mill will be attributable to the co-generation plant. His table entitled "Total Truck Generation from Sugar Mill " shows that in 2004, when the co-generation plant is operational, 18.1 per cent of total truck movements from the mill will be attributable to the proposal, this proportion decreasing to 17.8 per cent in 2010. Further, Mr Gennaoui calculates that in the period 2004- 2010, 51 per cent of the additional traffic from the sugar mill will be attributable to the co-generation plant. 11 In the absence of clear statistics showing the present and future contributions to total traffic along Broadwater Road attributable to the sugar mill, the figures in Mr Gennaoui's table of existing and projected traffic volumes entitled "Traffic Volumes Along Broadwater Road" are adopted. The total traffic along the road attributable to the sugar mill, according to the table, is the sum of the values in the rows labelled "Rigid Trucks (3 axles)", "Rigid Trucks (rigid trucks 4 axles [sic]" and "Articulated Trucks (6 axles)". The row labelled "Cars" is, for the purposes of this analysis, assumed not to be attributable to the sugar mill; and cars are a relatively unimportant component of traffic on Broadwater Road, most of which have nothing to do with the mill. Moreover, the numbers of cars remain constant throughout the analysis in the table, so that they are of little importance in the Court's examination of how the proposal would contribute to projected increases in traffic levels. 12 In applying Mr Gennaoui's table of existing and projected traffic volumes, it can be estimated that 465 of the 748 total existing "With Haulage" Passenger Car Units ("PCU's") are attributable to the sugar mill. Likewise, 878 of the 1160 total "Future [that is, 2010] with Haulage" PCU's will be attributable to the sugar mill. Therefore, during the period 2004- 2010, the increase in traffic along Broadwater Road attributable to the entirety of the mill's operations (that is the mill and the co-generation plant) will be 413 PCU's. As previously noted, Mr Gennaoui states that 51 per cent of this increase will be due solely to the operation of the co-generation plant. It necessarily follows, then, that 210.63 PCU's (of the increase in traffic) will be directly attributable to the co-generation plant. This equates to 23.99 per cent of the "Future With Haulage" traffic from the mill and 18.16 per cent of the total "Future with Haulage" traffic (including cars) along Broadwater Road. 13 I conclude, therefore, that the proponent should contribute 18 per cent (rounded to the nearest percentage point) of the total cost of the works required to upgrade the relevant portions of Broadwater Road which require upgrading. A condition to this effect would satisfy the requirements for reasonableness set out in Newbury. 14 Two sections of Broadwater Road require upgrading. A 1.7 km section immediately west of the Broadwater Bridge, and a separate 5.4 km section from Kilgin Road to Wyrallah Road. There is little difference between the costing of the necessary upgrading works calculated by Mr Perkins and Mr Findlater. Doing the best I can, given an examination of the evidence before the Court, it seems that the works on the 5.4 km portion of Broadwater Road will cost $2,196,803, and that for the 1.7 km portion will cost $715,143. 15 The proponent must contribute 18 per cent of these sums, which is $395,424.50 and $128,725.70 respectively: a total of $524,150.20. This sum is to be paid in ten annual payments of $52,415.02, with the first made upon the commissioning of the co-generation facility, and thereafter at 12 monthly intervals. An appropriate condition of consent will be included.

Orders 16 The formal orders of the court are as follows: (1) The appeal is allowed. (2) The following condition is added to the conditions of development consent: 84A. NSW Sugar Co-operative Limited, or, upon any transfer of that company's interest in the development to another person, the person carrying out the development shall pay to the Lismore City Council a monetary contribution for the purposes of upgrading of Broadwater Road in the sum of $524,150, as follows: (i) $52,415 upon the commissioning of the co-generation facility; (ii) thereafter nine (9) equal payments of $52,415 at twelve (12) monthly intervals on the anniversary of the commissioning of the co-generation facility.

The monetary contributions shall be indexed and adjusted annually in accordance with the consumer price index. (3) The exhibits may be returned.

I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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